O'Donnell v. Allstate Indemnity Co., 052220 NHSC, 2018-0706

Docket Nº:2018-0706
Opinion Judge:BASSETT, J.
Party Name:JOHN O'DONNELL v. ALLSTATE INDEMNITY COMPANY
Attorney:McDowell & Osburn, P.A., of Manchester (Mark D. Morrissette on the brief and orally), for the plaintiff. Primmer Piper Eggleston & Cramer PC, of Manchester (Doreen F. Connor on the brief and orally), for the defendant.
Judge Panel:HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.
Case Date:May 22, 2020
Court:Supreme Court of New Hampshire
 
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JOHN O'DONNELL

v.

ALLSTATE INDEMNITY COMPANY

No. 2018-0706

Supreme Court of New Hampshire

May 22, 2020

Argued: November 6, 2019

Hillsborough-Northern Judicial District

McDowell & Osburn, P.A., of Manchester (Mark D. Morrissette on the brief and orally), for the plaintiff.

Primmer Piper Eggleston & Cramer PC, of Manchester (Doreen F. Connor on the brief and orally), for the defendant.

BASSETT, J.

The plaintiff, John O'Donnell, appeals an order of the Superior Court (Messer, J.) granting summary judgment to the defendant Allstate Indemnity Company. Following a November 2015 motor vehicle accident, O'Donnell filed an underinsured motorist claim under a personal umbrella insurance policy that he had purchased from Allstate. The claim was denied by Allstate. O'Donnell then filed this declaratory judgment action to determine whether his policy provided uninsured motorist coverage. The trial court concluded that O'Donnell's policy did not provide uninsured motorist coverage, finding that a written waiver of uninsured motorist coverage that O'Donnell had executed in September 2011 remained in effect at the time of the accident. We affirm.

The following facts are drawn from the trial court's order and the record, or are otherwise undisputed. In September 2011, O'Donnell applied for a personal umbrella insurance policy from Allstate. The policy became effective on September 2, 2011, with a coverage period from September 2, 2011 to September 2, 2012. The policy provided O'Donnell with $2, 000, 000 of coverage.

On September 27, 2011, O'Donnell submitted to Allstate a completed New Hampshire personal umbrella policy uninsured motorist selection/rejection form. The selection/rejection form that O'Donnell signed provided that "[t]he following selection or rejection [of uninsured motorist coverage] will apply now and to all future renewals or continuations of my policy unless I notify you otherwise in writing." O'Donnell checked the following box: "I wish to reject Uninsured Motorists Insurance . . . for my Personal Umbrella Policy."

In July 2012, 2013, and 2014, Allstate sent O'Donnell a "Renewal Offer" for his personal umbrella policy. On each occasion, O'Donnell accepted the renewal offer, and Allstate sent O'Donnell "RENEWAL Personal Umbrella Policy Declarations" and/or "AMENDED Personal Umbrella Policy Declarations." Each renewal was effective for a term of one year beginning on September 2. O'Donnell continued to have the same policy number with substantially the same coverage terms as he had during the original coverage period. The first page of the policy declarations for each coverage period stated: "Uninsured Motorists Insurance Rejected." Each year, Allstate sent O'Donnell a notice reminding him that the company offered uninsured motorist coverage, and inviting him to "contact [his] agent" for more information about his "options concerning this coverage."

In July 2015, Allstate again sent O'Donnell a policy renewal offer. O'Donnell requested that Allstate reduce his coverage limit from $2, 000, 000 to $1, 000, 000 for the September 2, 2015 to September 2, 2016 coverage period. Allstate complied with O'Donnell's request, which resulted in a nearly 50 percent decrease in O'Donnell's premium. Allstate sent O'Donnell amended personal umbrella policy declarations for the 2015-16 coverage period, which reflected the reduced coverage limit and premium. The policy declarations stated, in bold font, that O'Donnell had rejected uninsured motorist coverage. At approximately the same time that it sent the 2015-16 policy declarations, Allstate also sent O'Donnell a notice reminding him that the company offered uninsured motorist coverage. It is undisputed that O'Donnell made no written request for uninsured motorist coverage. Moreover, in the affidavit that O'Donnell submitted to the court, he made no assertion that he otherwise requested uninsured motorist coverage.

The new coverage limit became effective on September 2, 2015. O'Donnell continued to have the same policy number, and, other than the reduced coverage limit and premium, the 2015-16 coverage terms were substantially the same as the terms during the previous coverage periods.

The new coverage limit was in effect on November 12, 2015, when O'Donnell was injured in a motor vehicle accident in which the car that he was driving was rear-ended by another motorist. O'Donnell filed a claim for underinsured motorist coverage under his umbrella policy, which Allstate denied.

O'Donnell brought a declaratory judgment action to determine whether the 2015-16 policy provided uninsured motorist coverage. He argued that, because his coverage limit was reduced from $2, 000, 000 to $1, 000, 000 as of September 2, 2015, the 2015-16 policy was a new policy to which his 2011 waiver of uninsured motorist coverage did not apply. O'Donnell argued that, because he did not execute a new written waiver of uninsured motorist coverage in conjunction with the 2015-16 policy, Allstate was required by statute to provide him with uninsured motorist coverage.

RSA 264:15, I (Supp. 2019) provides, in relevant part: [U]mbrella or excess policies that provide...

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